The changing cannabis landscape is transforming the U.S. and global workplace, affecting safety, policy, and employee recruitment and retention. As societal attitudes and legal frameworks surrounding cannabis continue to evolve, employers face new challenges in adapting drug testing and human resources (HR) policies to this new world.
This article explores the shifting public perception around cannabis use and considerations for leaders in the construction industry to ensure a safe and fair workplace. It also discusses best practices to reduce risk and costs for construction employers by leveraging modern technological developments in drug testing.
Public Perception, Usage & Behavior
Public perception of cannabis in the U.S. has dramatically shifted over recent years. According to a 2021 Gallup poll, 68% of American adults support cannabis legalization — the highest percentage in over five decades of polling.1 This shift is also indicative of a broader cultural change toward the acceptance of cannabis.
At the same time, cannabis usage has also increased. The National Survey on Drug Use and Health reported that in 2020, approximately 49.6 million Americans aged 12 or older used
cannabis, marking a noticeable increase from previous years.2
Even though usage has dramatically increased in the past few years, cannabis remains classified at the federal level as a Schedule I drug under the Controlled Substances Act, implying no accepted medical use and a high potential for abuse.3 Alternatively, 24 states have legalized cannabis for recreational use, and 38 states have legalized it for medical use (Exhibit 1).4
Challenges Navigating the Evolving Landscape for Employers
Federal and state policy disparities have created complex scenarios for employers, especially those operating in multiple states. For example, there can be employer conflicts in states where cannabis is legal, particularly regarding drug testing policies, making it challenging to balance multi-state companies where a portion of its employees operate in legally permissive states.
Some states guide employers on how to navigate changes. For instance, New York’s Marijuana Regulation and Taxation Act includes provisions that restrict employers from taking adverse action against employees for off-duty cannabis use.5
In some cases, there has been a trend toward the relaxation of cannabis testing, where some employers actively choose to forgo testing for cannabis altogether, which may not work in industries like construction with prevalent safety risks.
Currently, there are a few recent legislative developments or proposed bills that aim to clarify details further and regulate employer drug testing related to cannabis.6 Despite these changes, there remains a need for more explicit federal guidance and, ultimately, more clarity for employers.
Cannabis Testing Challenges & Considerations for Employers
A study by the National Institute on Drug Abuse reports that cannabis users are more likely to cause a workplace accident and file a workers’ comp claim. More specifically, employees who test positive for cannabis have 55% more industrial accidents, 85% more injuries, and 75% more absenteeism.7 Additionally, those who misuse drugs and alcohol are 3.6 times more likely to be involved in an accident and five times more likely to file a workers’ comp claim,8 which has an average cost of $41,757.9
Even so, there are multiple challenges regarding drug testing for cannabis. Unlike alcohol, where impairment is often lawfully defined by a specific blood alcohol concentration (BAC), there’s no universally accepted standard for cannabis impairment. Legally defining cannabis impairment is complex and varies depending on the legal jurisdiction and context.
The following are some considerations when implementing cannabis testing:
Detection Window
For regular cannabis users, Delta-9 Tetrahydrocannabinol (THC) — the psychoactive component in cannabis — is metabolized and persists in fat tissue as the inactive metabolite THC-COOH with frequent consumption. However, some THC can be deposited in saliva, and if cannabis is smoked, then the detection window for saliva can be 30 minutes to about 10 hours.10
Urine tests can detect this inactive metabolite and confirm historical use. This is distinct from saliva tests that detect recent use instead.
Lack of Reliable Testing
Over 90% of drug tests use a urine sample, which detects past cannabis use and is not a reliable indicator of impairment.11 Since THC is fat-soluble and builds up in the human body over time with regular use, THC can remain detectable for four weeks or longer — even after its psychoactive effects have subsided.12
Absence of a Universal Standard
There isn’t a universally accepted concentration of THC in the blood, saliva, or urine that definitively indicates impairment, unlike the 0.08% BAC for alcohol in most states.13
State-Specific Standard
Some states have attempted to set legal limits for THC concentration, akin to BAC for alcohol. For example, Colorado has a legal limit of five nanograms of THC per milliliter (ng/ml) of blood.14 However, these limits are controversial, according to Dr. Godfrey Pearlson, a professor of psychiatry and neuroscience at Yale University, who cautioned legal limits for THC. THC metabolism varies significantly among individuals, and he confirms that the THC standards of 0-5 ng/ml of blood are arbitrary and “…are very loose concepts for which there is very little evidence.”15
Variability in Effects
The effects of cannabis can vary widely based on factors like the user’s tolerance, the potency of the cannabis, and the method of consumption (e.g., smoking, vaping, edibles).16
Employment Law
Legally defining impairment is crucial for enforcing workplace drug policies; however, employers often need a standard measure of observed behavior and performance indicators.
Criminal Law
In the context of driving under the influence and to assess impairment, law enforcement may rely on potentially subjective field sobriety tests and observations, in addition to any available THC concentration levels.
Legal & Ethical Issues
The inability to distinguish presence from impairment complicates legal situations for employers and employees. For instance, in safety-sensitive industries like construction, a zero-tolerance policy may conflict with employee rights in states where cannabis is legal.17
Privacy Concerns
Employers may face ethical concerns regarding employee privacy and rights. The Health Insurance Portability and Accountability Act (HIPAA) does not generally apply to employers. It states that “there are circumstances in which employers are subject to HIPAA about safeguarding the confidentiality, integrity, and security of Protected Health Information (PHI).”18 Additionally, testing for mere presence might infringe on employees’ legally permissible off-duty conduct.19
Workplace Safety, Productivity & Fairness
Discuss the balance employers must strike between ensuring a safe, productive workplace and treating employees fairly, especially those using cannabis for medical purposes. Emphasize accurately assessing impairment in positions where safety is paramount, such as transportation, health care, and construction.
Best Practices to Employ a Safety-First Workplace Culture
The traditional approach of testing for any cannabis use is outdated. With the new cannabis landscape, employers are now challenged to adapt their drug testing policies and methods by shifting toward testing for recent use to ensure safety during work hours, distinguishing it from recreational or medicinal use outside of work (Exhibit 2).
The American Journal of Industrial Medicine highlights the complexity of testing for impairment, given that current drug tests can detect cannabis use but not necessarily current impairment.20 This distinction is crucial in balancing workplace safety and employee privacy rights (Exhibit 3).
To equip construction financial professionals with practical guidance, here are some best practices.